Fout et al v. EQT Production Company

Filing 184

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS' MOTION TO ALTER JUDGMENT. Plaintiffs' Rule 60(b) motion to alter judgment (ECF No. 181 ) is DENIED. Signed by Senior Judge Frederick P. Stamp, Jr on 8/5/2019. (wrr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JOHN FOUT, NANCY FOUT,
J&N MANAGEMENT, LLC and
J&N MANAGEMENT ENTERPRISES, LLC,
Plaintiffs,
v.

Civil Action No. 1:15CV68
(STAMP)

EQT PRODUCTION COMPANY,
a Pennsylvania corporation,
Defendant.

MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFFS’ MOTION TO ALTER JUDGMENT
I.

Background

Following the jury trial of this civil action, the plaintiffs
have filed a motion to alter judgment pursuant to Federal Rule of
Civil Procedure 60.1

ECF No. 181.

The plaintiffs argue that the

judgment should be altered or amended for the following reasons:
(1) the defendant, EQT Production Company (“EQT”), has a written
policy dealing with the deductions, which is a contradiction to and
misrepresents the oral policy, thereby prejudicing the plaintiffs;
and (2) in order to comply with the laws of West Virginia,
specifically West Virginia Code § 22-6-8, the written policy of EQT
should be followed.

Id. at 5-9.

The plaintiffs cite Kay Co., LLC

v. EQT Production, Civil Action No. 1:13-CV-151, and request that

1

The plaintiffs do not specify which part of Federal Rule of
Civil Procedure 60 pursuant to which they file their motion to
alter judgment.

this Court “restore[] [ ] their correct rental payments.”

Id.

at 6, 9.
The defendant filed a response in opposition to the motion, in
which it asserts that the plaintiffs are simply dissatisfied with
the jury’s verdict in this case and that they are barred by the
doctrine

of

res

judicata

settlement in Kay Co.

from

joining

ECF No. 183 at 3.

the

class

and

class

The defendant cites the

United States Court of Appeals for the Fourth Circuit, explaining
that a Rule 60(b)(3) motion should be granted if: “(1) the moving
party has a meritorious defense; (2) the misconduct is proved by
clear and convincing evidence; and (3) the misconduct prevented the
moving

party

from

fully

presenting

its

case.”

Columbia

Communications Corp. v. EchoStar Satellite Corp., 2 F. App’x 360,
366 (4th Cir. 2001) (citing Shultz v. Butcher, 24 F.3d 626, 630
(4th Cir. 1994).

Id. at 4.

The defendant asserts that the

plaintiffs do not meet any of these prongs.

Id. at 4-5.

The plaintiffs did not file a reply to the defendant’s
response in opposition.
II.

Discussion

Because the plaintiffs have not filed their motion or attached
memorandum pursuant to a particular part of Federal Rule of Civil
Procedure 60, this Court will proceed to analyze the plaintiffs’
motion under each part of Federal Rule of Civil Procedure 60.

2

A.

Rule 60(a)
Federal Rule of Civil Procedure 60(a) provides that a court

“may correct clerical mistakes or mistakes arising from oversight
or omission.”

Fed. R. Civ. P. 60(a); see also Am. Trucking Ass’ns

v. Frisco Transp. Co., 358 U.S. 133, 145, 79 S. Ct. 170, 177, 3
L.Ed.2d 172, 26 P.U.R.3d 527 (1958) (“It is axiomatic that courts
have the power and the duty to correct judgments which contain
clerical errors or judgments which have issued due to inadvertence
or mistake.”).

“[T]he scope of a court’s authority under Rule

60(a) to make corrections to an order or judgment is circumscribed
by the court’s intent when it issued the order or judgment.”
Sartin v. McNair Law Firm PA, 756 F.3d 259, 266 (4th Cir. 2014).
Plaintiffs have failed to identify any clerical mistake or
correction necessary to conform the judgment to the Court’s intent.
Therefore, any request for relief under Rule 60(a) is denied.
B.

Rule 60(b)
Federal Rule of Civil Procedure 60(b) provides that a court

may, upon motion or upon such terms as are just, relieve a party
from

a

final

judgment,

order,

or

proceeding

for

one

of

following reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with
reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b); (3) fraud
(whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void; (5) the judgment has been
satisfied, released or discharged; it is based on an
3

the

earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or (6)
any other reason that justifies relief.
Fed. R. Civ. P. 60(b).

“The extraordinary remedy of Rule 60(b) is

only to be granted in exceptional circumstances.”

Wilson v.

Thompson, No. 04-1099, 2005 WL 1607760, at *1 (4th Cir. July 11,
2005) (unpublished) (citing Compton v. Alton S.S. Co., 608 F.2d 96,
102 (4th Cir. 1979).
1.

Rule 60(b)(1)

“To obtain relief under [ ] Rule [60(b)(1)], a party must
demonstrate[, among other things,] that he was not at fault and
that the nonmoving party will not be prejudiced by the relief from
the judgment.”

Home Port Rentals, Inc. v. Ruben, 957, F.2d 126,

132 (4th Cir. 1992).

Moreover, “when a party is blameless, his

attorney’s negligence qualifies as a ‘mistake’ or as ‘excusable
neglect’ under Rule 60(b)(1).”

Augusta Fiberglass Coatings, Inc.

v. Fodor Contracting, 843 F.2d 808, 811 (4th Cir. 1988). “When the
party is at fault, the [judicial system’s need for finality and
efficiency in litigation] dominate[s] and the party must adequately
defend its conduct in order to show excusable neglect.”
Plaintiffs
surprise,

or

have

not

excusable

alleged

any

neglect[,]”

extraordinary remedy of Rule 60(b).
relief under Rule 60(b)(1) is denied.

4

“mistake,
that

would

Id.

inadvertence,
warrant

the

Therefore, any request for

2.

Rule 60(b)(2)

A party seeking relief under Rule 60(b)(2) must demonstrate
that the “newly discovered evidence” was “of such a material and
controlling

as

[would]

probably

[have]

changed

the

outcome.”

Schultz v. Butcher, 24 F.3d 626, 631 (4th Cir. 1994) (alteration in
original; internal quotation marks omitted).
The plaintiffs have failed to show that any newly discovered
evidence is present in this case. The plaintiffs reference Kay Co.
and West Virginia Code § 22-6-8.
construe

the

settlement

as

First, even if this Court were to

“evidence”

for

purposes

of

Rule

60(b)(2), the defendant correctly notes that the terms of the Kay
Co. class settlement reflect a settlement of claims negotiated
after litigation between the parties to that case.

Specifically,

the

the

plaintiffs

have

failed

to

demonstrate

how

Kay

Co.

settlement is evidence that would probably have changed the outcome
in this case.

Second, to the extent that plaintiffs assert that

the modification of West Virginia Code § 22-6-8 entitles the
plaintiffs to relief under Rule 60(b), this Court will consider
that argument in the sections of this memorandum opinion and order
that discusses potential relief under Rule 60(b)(5) or (b)(6). See
Atwell v. Equifax, Inc., 86 Fed. R. Serv. 2d 1209 (D. Md. May 6,
1980) (“A petition to vacate a judgment based on a change in law is
normally considered under either (b)(5) or (b)(6) of Rule 60”).

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3.

Rule 60(b)(3)

There are three factors that a moving party must establish in
order to prevail on a Rule 60(b)(3) motion:
(1) the moving party must have a meritorious defense; (2)
the moving party must prove misconduct by clear and
convincing evidence; and (3) the misconduct prevented the
moving party from fully presenting its case.
Schultz v. Butcher, 24 F.3d 626, 630 (4th Cir. 1994).
As defendant correctly notes, the plaintiffs are restating the
merits of the claims and arguments that were previously rejected.
See ECF No. 183 at 4.

Further, the plaintiffs have not alleged

misconduct by the defendant.

Therefore, the plaintiffs are not

entitled to relief under Rule 60(b)(3).
4.

Rule 60(b)(4)

As the Fourth Circuit explained, “[a] judgment is not ‘void’
under Rule 60(b)(4) merely because it is erroneous.”

Cromer v.

Kraft Foods North Am., 390 F.3d 812, 817 (4th Cir. 2004); see also
Baumlin & Ernst, Ltd., 637 F.2d 238, 242 (4th Cir. 1980) (“The
judgment, therefore, may, at most, have been erroneous, but any
error, if it indeed existed, could have been attacked on appeal.
Error, however, does not make the judgment void and, therefore,
Fed. R. Civ. P. 60(b)(4) is inapplicable.”).

A judgment is “void

only if the court that rendered it lacked jurisdiction of the
subject matter, or of the parties, or if it acted in a manner
inconsistent with due process of law.”

Eberhardt v. Integrated

Design & Constr., 167 F.3d 861, 871 (4th Cir. 1999) (quoting
6

Schwartz, 976 F.2d at 217); see also United Student Aid Funds, Inc.
v. Espinosa, 559 U.S. 260, 271 (2010) (“Federal courts considering
Rule

60(b)(4)

motions

that

assert

a

judgment

is

void

of

a

jurisdictional defect generally have reserved relief only for the
exceptional case in which the court that rendered judgment lacked
even an arguable basis for jurisdiction.”) (internal quotation
marks omitted).

A court should “narrowly construe the concept of

a ‘void’ order under Rule 60(b)(4) . . . because of the threat to
finality of judgments and the risk that litigants . . . will use
Rule 60(b)(4) to circumvent an appeal process they elected not to
follow.”

Wendt v. Leonard, 431 F.3d 410, 412 (4th Cir. 2005); see

also Girardi v. Heep, 203 F.3d 820 (Table), 2000 WL 1287, at *2
(4th Cir. Dec. 30, 1999) (“Finality concerns and the danger that
litigants will use motions under Rule 60(b)(4) to eschew the
appellate process require that we narrowly construe the concept of
a void judgment.”). Therefore, relief under a Rule 60(b)(4) motion
is “an extraordinary remedy.”

Garcia Fin. Group, Inc. v. Virginia

Accelerators Corp., 3 F. App’x 86, 88 (4th Cir. 2001).
Here, this Court clearly had more than an arguable basis for
exercising jurisdiction.

Moreover, the plaintiffs do not allege

that this Court acted inconsistent with due process of law. Lastly,
the plaintiffs chose not to appeal this civil action to the Fourth
Circuit Court of Appeals. Therefore, to the extent that plaintiffs’
motion seeks relief under Rule 60(b)(4), such relief is denied.
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5.

Rule 60(b)(5)

Subsection (b)(5)of Rule 60 provides:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly
Discovered Evidence; Fraud, etc. On motion and upon such
terms as are just, the court may relieve a party or his
legal representative from a final judgment, order, or
proceeding for the following reasons:
. . .
(5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no
longer equitable that the judgment should have
prospective application.
Fed. R. Civ. P. 60(b)(5).
Plaintiffs do not specify which of the particular grounds
under Rule 60(b)(5) should apply to this case. However, this Court
finds, and as the defendant correctly notes, none of the grounds,
i.e. “the judgment has been satisfied, released, or discharged, or
a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment
should

have

reference

Kay

prospective
Co.

and

a

application[,]”
modification

in

apply.
West

Plaintiffs
Virginia

Code

§ 22-6-8. First, as the defendant correctly notes, the terms of the
Kay Co. class settlement do not establish any policy. Second, even
if this Court were to construe the plaintiffs’ references to the
Kay Co. settlement and West Virginia Code § 22-6-8 as assertions
that there has been a change in law or a change in judicial view of
the applicable law, such changes, after a final judgment, are not
8

bases for vacating a judgment entered before announcement of such
changes.

See Wright & Miller, supra § 2863, at 204; Nunnery v.

Barber, 23 Fed. R. Serv. 2d 232 (4th Cir. 1977); 7 Moore’s Federal
Practice 60.23(3) at 325; Comment, Pierce v. Cook & Co.: Change in
State Law as a Ground for Relief from a Federal Judgment, 124 U.
Pa. L. Rev. 843, 850 (1976); see also Atwell v. Equifax, Inc., 29
Fed. R. Serv. 2d 1209 (D. Md. May 6, 1980) (“The weight of
authority in the Fourth Circuit and in other circuits is that a
change in a rule of law is insufficient to warrant reopening a
final judgment.”); Schwartz v. U.S., 129 F.R.D. 117, 121 (D. Md.
Jan. 25, 1990) (“It is thus the settled rule that a change in the
judicial view of the applicable law, after a final judgment, is not
a basis for vacating a judgment entered before announcement of the
change.”) (internal quotation marks omitted).
6.

Rule 60(b)(6)

Subsection (b)(6) of Rule 60 allows a court to grant Rule
60(b) relief for “any other reason justifying relief from the
operation of the judgment.”

Fed. R. Civ. P. 60(b)(6).

“[C]lause

(6) and the first five clauses are mutually exclusive and [ ]
relief cannot be had under clause (6) if it would have been
available under the earlier clauses.”

11 C. Wright & A. Miller,

Federal Practice and Procedure: Civil, § 2864 (1973).

“[T]he

language of the ‘other reason’ clause, for all reasons except the
five particularly specified, vests power in courts adequate to
9

enable them to vacate judgments whenever such action is appropriate
to accomplish justice.”

Klapprot v. United States, 335 U.S. 601,

614-15, 69 S. Ct. 384, 390-91, 93 L.Ed. 266 (1949).
The consequences resulting from a conscious decision regarding
the process of litigation is not covered by Rule 60(b)(6).

See

Schwartz, 129 F.R.D. at 121 (“[I]f a party makes a free and
conscious choice regarding the conduct of litigation, he cannot be
granted relief under Rule 60(b)(6) from the consequences of that
decision.”); see also Ackermann v. United States, 340 U.S. 193, 196
71 S. Ct. 209, 211 95 L.Ed. 207 (1950).
Plaintiffs, here, made a conscious decision in stipulating,
and

thereby

narrowing

the

issue

to

be

decided

at

trial.

Specifically, the parties stipulated that the “sole remaining issue
is the reasonableness of the post-production expenses actually
incurred by the lessee.”

ECF No. 43 at 1.

The plaintiffs have not

shown “exceptional” circumstances that would justify relief under

10

subsection (6).2 Therefore, to the extent plaintiffs’ motion seeks
relief under Rule 60(b)(6), such relief is denied.
III.

Conclusion

For the reasons described above, plaintiffs’ Rule 60(b) motion
to alter judgment (ECF No. 181) is DENIED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:

August 5, 2019

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

2

This Court notes, as explained in Securities and Exchange
Commission v. Tsao, 317 F.R.D. 31, 36 n. 2 (D. Md. Apr. 4, 2016)
that:
[t]he ‘exceptional’ or ‘extraordinary’ circumstances
requirement is sometimes framed as a prerequisite to Rule
60(b) relief in general, and sometimes more narrowly
described as an element of the Rule 60(b)(6) catchall.
Compare Werner v. Carbo, 731 F.2d 204, 206–07 (4th Cir.
1984) (“To bring himself within Rule 60(b), the movant
must make a showing of . . . exceptional circumstances”)
with Aikens v. Ingram, 652 F.3d 496, 501 (4th Cir. 2011)
(requiring “extraordinary circumstances” for applications
of subsection (6) in particular).
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